ReneeD
Posts: 201
Posts: 201
Posted:
Who has final say on interpreting an Association's governing documents? The BOD, a lawyer, or management company. Thanks. -Renee
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Decs/Bylaw Interpretation(IL)
Started by ReneeD • 14 replies • 1588 views
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DonnaS
Posts: 5,596
Posts: 5,596
Posted:
There is a heirarchy that you have. The BOD is responsible for interpretation and enactment but a smart Board will seek an opinion from a good HOA lawyer in cases where there is a question as to that interpretation.
MaryA1
Posts: 6,993
Posts: 6,993
Posted:
Renee,
As Donna has stated, the BOD has the power to interpret the gov docs and that power should be outlined in the declaration. However, their interpretation cannot change the meaning or intent of the restriction. When in doubt they should definitely consult an attorney. The mgmt co or a property manager should not have the final say on an interpretation however they most definitely can be consulted for their opinion.
As Donna has stated, the BOD has the power to interpret the gov docs and that power should be outlined in the declaration. However, their interpretation cannot change the meaning or intent of the restriction. When in doubt they should definitely consult an attorney. The mgmt co or a property manager should not have the final say on an interpretation however they most definitely can be consulted for their opinion.
JohnB26
Posts: 1,542
Posts: 1,542
Posted:
....a court of law!
any other answer is merely an opinion
any other answer is merely an opinion
DonnaS
Posts: 5,596
Posts: 5,596
Posted:
John,
Of course the court of law would have the difinitive answer but the O.P wanted to know of her 3 listed, who has the final opinion on an interpretation. Sometimes a BOD will pay a hefty fee for a legal opinion and despite that, make a decision contrary to legal advice. The buck stops with the Board because they are responsible for association decisions.
MaryA1
Posts: 6,993
Posts: 6,993
Posted:
John,
Most assn declarations give the authority to interpret the declaration to the BOD. Of course if a member wanted to dispute their interpretation in a court of law the judge would have the final say but I doubt this happens very often. So, in most cases it is the BOD that makes the interpretation, sometimes with the assistance of their attorney, sometimes not.
Of course that is only my opinion, but if you were to do a survey I think you would find quite a bit of truth in it.
Most assn declarations give the authority to interpret the declaration to the BOD. Of course if a member wanted to dispute their interpretation in a court of law the judge would have the final say but I doubt this happens very often. So, in most cases it is the BOD that makes the interpretation, sometimes with the assistance of their attorney, sometimes not.
Of course that is only my opinion, but if you were to do a survey I think you would find quite a bit of truth in it.
ReneeD
Posts: 201
Posts: 201
Posted:
Appreciate everyone's responses. Only once have I actually heard the BOD consulting with an attorney with a decision they thought was correct but wanted to be doubly sure so, it makes sense the buck stops with the BOD.
JohnB26
Posts: 1,542
Posts: 1,542
Posted:
"...the buck stops with the BOD."
perhaps, but, a court of law still has the final say re: interpretation
perhaps, but, a court of law still has the final say re: interpretation
RichardP13
Posts: 1,760
Posts: 1,760
Posted:
Quote:
Posted By JohnB26 on 07/25/2010 4:19 PM
"...the buck stops with the BOD."
perhaps, but, a court of law still has the final say re: interpretation
"...the buck stops with the BOD."
perhaps, but, a court of law still has the final say re: interpretation
Even Courts can't agree on an interpretation, so ultimately, the final say, on any matter in this country comes down to the Supreme Court.
MaryA1
Posts: 6,993
Posts: 6,993
Posted:
Richard,
I presume you mean the State Supreme Court. However, good luck on getting a case to either the State or Federal Supreme Court and I doubt an HOA case of this nature would even get to the St. Appellate Court! When someone uses the threat, "I'll take it all the way to the Supreme Court", they are either saying that because they don't know any better or just for emphasis meaning they will not back down.
I presume you mean the State Supreme Court. However, good luck on getting a case to either the State or Federal Supreme Court and I doubt an HOA case of this nature would even get to the St. Appellate Court! When someone uses the threat, "I'll take it all the way to the Supreme Court", they are either saying that because they don't know any better or just for emphasis meaning they will not back down.
DonnaS
Posts: 5,596
Posts: 5,596
Posted:
The State Attorney General in many States will make a decision on whether it goes to a higher court. Never heard of it getting past the AG. And what could be so important other than who can make the most noise, some homeowner who feels they have been wronged or some Board who has a point to prove. What a waste.
MaryA1
Posts: 6,993
Posts: 6,993
Posted:
Donna,
Are you sure that applies for all cases, even those that do not involve the State (the state or state agency as a defendant or plaintiff). I've always thought it was the individual court (appellate court, supreme court) that makes the decision as to whether they will hear the case.
Are you sure that applies for all cases, even those that do not involve the State (the state or state agency as a defendant or plaintiff). I've always thought it was the individual court (appellate court, supreme court) that makes the decision as to whether they will hear the case.
DonnaS
Posts: 5,596
Posts: 5,596
Posted:
I speak for Florida where they have State laws for HOA's. Some times the A.G. will interpret those laws-if a case ever got that far past Omsbudmen and local courts.
RichardP13
Posts: 1,760
Posts: 1,760
Posted:
In California, there is no agency per se that oversees the enforcement of HOA laws in Association. If a matter does go to court it will start with the Counties Superior Court system. The AG will not get involved the the regulation of HOA's. Eventually the buck stops with the court willing to hear the case on appeal, with the Supreme Court being the very last court that would hear a case. There word would be final.
MaryA1
Posts: 6,993
Posts: 6,993
Posted:
AZ also has no state agency to oversee HOAs and our AG definitely will NOT get involved with any HOA issues. His resp. lies with the State and State agencies.
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